Mitchell v. Social Security Administration

Filing 17

REPORT AND RECOMMENDATION: The undersigned RECOMMENDS that the plaintiff's motion for judgment on the record (DE 12) be DENIED, and the Commissioner's decision AFFIRMED. Signed by Magistrate Judge Joe Brown on 1/15/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JACQUELINE MITCHELL,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE, COMMISSIONER )
OF SOCIAL SECURITY,
)
)
Defendant.
)

No. 3:12-01060
Judge Nixon/Brown

To: The Honorable John T. Nixon, Senior United States District Judge
REPORT AND RECOMMENDATION
This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the
final decision of the Social Security Administration (“the SSA”), through its Commissioner (“the
Commissioner”), denying plaintiff’s applications for Disability Insurance Benefits (DIB) under Title
II of the Social Security Act (“the Act”), 42 U.S.C. §§ 416(i), 423(d), and Supplemental Security
Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. For the reasons explained
below, the undersigned RECOMMENDS that the plaintiff’s motion for judgment on the record (DE
12) be DENIED, and the Commissioner’s decision AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff filed an application for DIB and SSI on December 20, 2008, claiming disability due
to left knee replacement, right knee osteoarthritis, and depression, with a disability onset date of June
1, 2008. (Doc. 10, pp. 14, 16, 105, 536) Plaintiff’s claims were denied initially on June 22, 2009,
and upon reconsideration on October 7, 2009. (Doc. 10, pp. 27-45)
Plaintiff requested a hearing before an Administrative Law Judge (ALJ) on November 9,
2009. (Doc. 10, pp. 46-47) Plaintiff, represented by counsel, testified at a hearing before ALJ David

Ettinger on December 14, 2010. (Doc. 10, pp. 533–53) Vocational expert (VE) Kenneth Anchor
testified at the hearing. (Doc. 10, pp. 549-52)
The ALJ entered an unfavorable decision on January 4, 2011. (Doc. 10, pp. 11-22) On
January 4, 2011, plaintiff requested that the Appeals Counsel review the ALJ’s decision. (Doc. 10,
p. 10) The Appeals Counsel denied the request on August 15, 2012 (Doc. 10, pp. 6-9), whereupon
the ALJ’s decision became the final decision of the Commissioner.
Plaintiff brought this action on October 15, 2012 seeking judicial review of the
Commissioner’s decision. (Doc. 1) Plaintiff filed a motion for judgment on the administrative
record on January 22, 2013 (Doc. 12), to which the Commissioner responded in opposition on
February 21, 2013 (Doc. 13), and plaintiff replied on March 13, 2013 (Doc. 14). This matter is now
properly before the court.
II. REVIEW OF THE RECORD
A. Medical Evidence
As noted on p. 1 above, plaintiff’s disability claims stem from left knee replacement, right
knee osteoarthritis, and depression. As shown below at pp. 15-21, the claims before the court pertain
to the weight given by the ALJ to evidence provided by plaintiff’s therapist at Centerstone, Angelia
Amonett, MA, and the ALJ’s credibility determination. The medical evidence below has been
tailored to those two claims.
Plaintiff underwent a consultative physical examination on December 2, 2007 by Dr. Bruce
Davis, M.D. (Doc. 10, pp. 161-163) Dr. Davis determined that plaintiff could lift 10 to 20 pounds
1/3 of the time during an 8-hour workday, 10 pounds 2/3 of the time during an 8-hour workday, that
she could stand 4 hours (one hour uninterrupted) during an 8-hour workday with limited squatting
and kneeling, and that she could sit for 8 hours during an 8-hour workday. (Doc. 10, p. 163)

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Dr. Glenn James, M.D., completed a physical functional capacity assessment of plaintiff on
December 21, 2007. (Doc. 10, pp. 164-171) Dr. James determined that plaintiff could lift 20 pounds
occasionally, 10 pounds frequently, that she could stand and/or walk at least 2 hours in an 8-hour
workday, that she could sit for about 6 hours during an 8-hour work day, and that she had no pushing
and/or pulling limitations. (Doc. 10, p. 165) Dr. James further determined that plaintiff could climb,
balance, stoop, kneel, crouch, and or crawl occasionally. (Doc. 10, p. 166)
Robert Doran, M.A., conducted a consultative psychological evaluation of plaintiff on
January 21, 2008. (Doc. 10, pp. 172-75) Mr. Doran reported that plaintiff was “an unreliable
historian . . . vague and evasive.” (Doc. 10, pp. 172, 174) Mr. Doran noted that plaintiff first
represented that she had never been diagnosed with a mental health disorder before, but stated later
that she had been diagnosed with depression following the 2002 death of her son in an automobile
accident. (Doc. 10, p. 172) During the examination, plaintiff reported numerous symptoms,
including forgetfulness, nervousness, irritability, mood swings, and depression. (Doc. 10, p. 173)
Mr. Doran stated that plaintiff “did not adequately describe symptoms consistent with a diagnosis
of ‘depression,’” therefore he declined to make that diagnosis. (Doc. 10, p. 174) Mr. Doran found
plaintiff had mild limitations in her ability to understand and remember, interact with others, and
adapt to change. (Doc. 10, p. 175) He stated that she had moderate limitations in her ability to
sustain concentration and persistence. (Doc. 10, p. 175)
On February 6, 2008, Dr. William Meneese, Ph.D., conducted a mental residual functional
capacity assessment of plaintiff. (Doc. 10, pp. 176-93) Dr. Meneese determined that plaintiff’s
understanding and memory, sustained concentration and persistence, social interaction, and
adaptation were not significantly limited for the most part, with only instances of moderate
limitations. (Doc. 10, pp. 176-79) More particularly, Dr. Meneese determined that plaintiff: 1)

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could understand, remember, and carry out short and simple instructions/tasks, but not detailed or
complex ones; 2) could maintain sufficient attention to complete simple tasks without the need for
special supervision or more than usual and customary rest breaks; 3) could tolerate non-intense
interaction with co-workers, supervisors, and the public; 4) required tactful and supportive
supervision; 5) required gradual interaction with changes in the workplace; 5) could set simple,
short-term, realistic work goals, but required assistance with those that were long-term and complex.
(Doc. 10, p. 178) Dr. Meneese noted that plaintiff’s allegations were not fully credible given the
consistency between Mr. Doran’s report and plaintiff’s daily living activities. (Doc. 10, p. 192)
Finally, Dr. Meneese assigned plaintiff a Global Assessment of Functioning (GAF) score of 65.1
(Doc. 10, p. 192)
An MRI of plaintiff’s left knee dated September 17, 2008 revealed several problems with her
left knee. (Doc. 10, pp. 199-200) Thereafter, plaintiff underwent a total knee replacement of her left
knee at the Nashville General Hospital (“Nashville General”) on January 6, 2009. (Doc. 10, pp. 197230)
Alice Garland, M.S., conducted a consultative psychological evaluation of plaintiff on June
5, 2009. (Doc. 10, pp. 231-33, 236) Ms. Garland’s impression included diagnosis of a depressive
disorder, but not one that fit any specified diagnoses, discounted panic disorder without agoraphobic
features, and ruled out personality disorder with dependent features. (Doc. 10, p. 233) Ms. Garland
made the following further observations: 1) plaintiff “did not appear to be a woman who would have
limitation in ability to do complex and detailed work”; her ability to persist and concentrate “may

1

A GAF score of 65 pertains to “some mild symptoms . . . OR some difficulty in social, occupational, or school
functioning. . . but generally functioning pretty well, has some meaningful interpersonal relationships. The Diagnostic
and Statistical Manual, Fourth Edition, Text Revision (DSM-IV-TR) (2000, p. 34)(bold omitted). DSM-IV-TR was the
edition in effect at all times relevant to this action.

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be moderately limited”; her “[a]bility to work with the public does not appear limited”; her
“[a]daptation does not appear to be over mildly limited.” (Doc. 10, p. 236)
Plaintiff went to the emergency room on June 11, 2009 complaining of pain in her right knee.
(Doc. 10, pp. 315-20) The record describes plaintiff “[i]n no acute distress,” with “[n]ormal
ambulation,” and only “mild” knee pain. (Doc. 10, p. 316)
Dr. Bruce Davis, M.D., of Corporate Services, Inc. conducted a consultative physical
examination of plaintiff on June 14, 2009. (Doc. 10, p. 234) Dr. Davis noted that plaintiff was in
“[n]o acute distress,” that her left knee exhibited post-surgical “pain, tenderness, warmth,
crepitus/clicking, incomplete flexion 100o [sic], show extension 0o [sic], incomplete squatting.”
(Doc. 10, p. 234) Dr. Davis noted the following with respect to plaintiff’s right knee: “full motion,
mild crepitus, no swelling/warmth . . . [m]ild gait limp with slow gait maneuvers (heel, toe, &
tandem) across exam room without assistance. No atrophy, normal reflexes.” (Doc. 10, p. 234)
Dr. Jeffrey Wright conducted a mental residual functional capacity examination of plaintiff
on June 16, 2009. (Doc. 10, pp. 237-254) Dr. Wright noted that plaintiff’s understanding and
memory were not significantly limited, that she had some mild limitations in sustained concentration
and persistence, but no significant limitations in either social interactions or adaptation. (Doc. 10,
pp. 237-38) Dr. Wright noted particularly that plaintiff: 1) can understand and remember simple and
detailed, non-complex tasks; 2) has some but not substantial difficulty maintaining concentration and
persistence; 3) can interact appropriately with the public, supervisors and co-workers, and can set
goals independently, adapt and respond to changes. (Doc. 10, p. 239) Dr. Wright wrote that
plaintiff’s subjective allegations were only partially credible because they were inconsistent with
objective findings in the record, and that plaintiff’s limitations in any given area were “no more than
moderate.” (Doc. 10, p. 253)

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Dr. Joe Allison, M.D., conducted a physical residual functional capacity assessment on June
22, 2009. (Doc. 10, pp. 255-63) Dr. Allison determined that plaintiff could lift 20 pounds
occasionally, 10 pounds frequently, that she could stand and/or walk at least 6 hours during an 8hour workday, that she could sit for about 6 hours during an 8-hour work day, that she could push
and/or pull only occasionally due to limitations of the left lower extremities. (Doc. 10, p. 256) Dr.
Allison further determined that plaintiff could climb, stoop, kneel, crouch, and/or crawl occasionally,
but that she could “never” balance, and that she should avoid concentrated exposure to extreme
could and workplace hazards such as machinery and heights. (Doc. 10, pp. 257, 259) He also noted
that plaintiff’s “symptoms of knee pain [were] expected to resolve with her left knee replacement
. . . ,” and that her “right knee pain should respond to appropriate medical treatment.” (Doc. 10, p.
260)
Plaintiff presented at Centerstone for treatment on July 6, 2009 for depression that she
attributed to her son’s death in 2002. (Doc. 10, pp. 398-412, 432, 513-21, 525-29) Plaintiff also
reported “fleeting” hallucinations, being in a daze, wanting to isolate herself, and unresolved anger.
(Doc. 10, p. 528) A preliminary Clinically Related Group (CRG) assessment was completed at
initial intake with “marked” limitations recorded in activities of daily living, interpersonal
functioning, concentration, task performance, pace, and adaption to change. (Doc. 10, pp. 398-400,
522-24) The preliminary CRG placed plaintiff in Consumer Group 1 – a person with severe
persistent mental illness – with a Global Assessment of Functioning (GAF) score of 48. (Doc. 10,
p. 400) A psychiatric evaluation completed at Centerstone that same day by Dr. John Pate, M.D.,
and Elizabeth Swope, MSN, established that plaintiff actually had a current GAF score of 54. (Doc.
10, pp. 409-12)
As previously noted above at p. 2, Ms. Amonett was assigned as plaintiff’s therapist at

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Centerstone. (Doc. 10, p. 529) The Centerstone records show that plaintiff presented for treatment
with Ms. Amonett on the following days: July 14, 2009 (Doc. 10, pp. 430-31); July 21, 2009 (Doc.
10, pp. 427-28); August 4, 2009 (Doc. 10, pp. 424-25); August 25, 2009 (Doc. 10, pp. 420-21);
September 1, 2009 (Doc. 10, pp. 413-14); September 15, 2009 (Doc. 10, p. 493); January 29, 2010
(Doc. 10, p. 483); July 16, 2010 (Doc. 10, p. 483); October 6, 2010 (Doc. 10, pp. 453-56).2 The
record shows that Ms. Amonett completed a mental status exam during plaintiff’s August 4, 2009
visit, the factors pertaining to which were rated variously as “[a]ppropriate,” “organized,”
“[n]ormal,” “[w]ithin normal limits,” or “[g]ood.” (Doc. 10, p. 424) Plaintiff participated in group
therapy or one-on-one therapy with Ms. Amonett on the other dates noted above.
Plaintiff saw Dr. Robert Johnston, M.D., at Nashville General on July 20, 2009 for follow-up
on her left knee. (Doc. 10, p. 445) Dr. Johnston found that her left knee had “excellent motion and
good stability” and stated that she was “generally doing well in regard to her left knee.” (Doc. 10,
p. 445) During this appointment, plaintiff also complained of right knee pain. (Doc. 10, p. 445)
Noting that previous x-rays revealed no osteoarthritis, Dr. Johnston recommended an MRI and
another appointment in two weeks. (Doc. 10, p. 445)
Plaintiff saw Dr. Johnston on July 28, 2009 concerning her right knee. (Doc. 10, p. 277)
Comparing an MRI made that date with one made on September 17, 2008, Dr. Johnston noted that,
apart from “nonspecific” degenerative changes, and “probable torn medial meniscus,” any issues
were “moderate,” “mild,” and “small” in nature, with the structure of the knee generally
unremarkable. Plaintiff reported during this same approximate time frame, i.e., on June 17, July 20,
and August 11, 2009 that, although painful, she had no functional limitations due to her knees, i.e.,

2

The record shows that plaintiff was a “no show” on more than a dozen occasions (Doc. 10, pp. 422, 423, 426,
452, 463, 472, 483, 485-88, 490-91, 498), and that she twice failed to participate in therapy for a period of six months,
from September 2009 to January 2010, and again from January 2010 to July 2010.

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“walking or getting up from bed/chairs.” (Doc. 10, pp. 267, 276, 279)
Plaintiff next saw Dr. Johnston on May 27, 2010. (Doc. 10, p. 441) Plaintiff stated that her
left knee replacement was doing well, but she continued to complain of right knee pain and requested
a right knee replacement. (Doc. 10, p. 441) Although Dr. Johnston initially appeared to agree to
plaintiff’s request, Dr. Johnston later determined that Plaintiff “does not really have enough findings
to warrant a knee replacement at this time.” (Doc. 10, p. 440) He recommended a follow-up
appointment in six months instead. (Doc. 10, p. 440)
A second CRG completed at Centerstone on July 16, 2010 remained essentially unchanged
from the one completed on July 6, 2009 in the sense that plaintiff remained classified as Consumer
Group 1. (Doc. 10, p. 470) However, that CRG reflected a current GAF score of 54, as did all of
the Centerstone records from the psychiatric evaluation on July 6, 2009 through July 16, 2010. (Doc.
10, pp. 401, 411, 418, 449, 455, 465, 470, 482, 499)
On October 10, 2010, Ms. Amonett completed a medical source statement (mental) in which
she noted the following with respect to plaintiff: 1) marked limitations in understanding and
remembering simple instructions; 2) marked limitations in the ability to carry out simple instructions;
3) marked limitations in the ability to make judgments on simple work-related decisions; 4) extreme
limitations in the ability to understand and remember complex instructions; 5) extreme limitations
in ability to carry out complex instructions; 6) extreme limitations in the ability to make judgments
on complex work-related decisions; 7) extreme limitations in the ability to interact appropriately with
the public; 8) extreme limitations in the ability to interact appropriately with supervisors; 9) extreme
limitations in the ability to interact appropriately with co-workers; 10) extreme disability in the
ability to respond appropriately to usual work situations and to changes in routine work setting.
(Doc. 10, pp. 436-37)

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B. Transcript of the Hearing
Questioned first by her attorney, plaintiff testified that she was 48-years of age at the time
of the hearing, that she graduated from high school, but had no college, and that she could read,
write, add and subtract. (Doc. 10, p. 537) Plaintiff also testified that her driver’s license had been
suspended for failure to pay a ticket, that she smoked approximately one-half pack of cigarettes a
day, that she “[s]ometimes” drank alcohol, that she had used crack cocaine for five to six years, but
that she had been “clean” for two years. (Doc. 10, pp. 538-39) Plaintiff testified that she was not
working at the time of the hearing, but that she had worked as a cook for eleven years. (Doc. 10, p.
539) She testified that, although she had not had the authority to hire or fire employees in that job,
or to order food products, she did train other employees. (Doc. 10, p. 540)
In response to physical health-related questions, plaintiff testified that she had problems with
both of her knees, that she had five to six surgeries on her left knee ending up in a total knee
replacement, and that she was scheduled to have her right knee replaced the following March due
to “severe arthritis.” (Doc. 10, p. 540) According to plaintiff, her first knee surgery was in 1998 due
to torn ligaments and cartilage, and that the remaining surgeries were necessary to treat an infection.
Plaintiff testified that she quit her job as a cook because of her knees, and that she could not return
to work as a cook because of her knees. (Doc. 10, pp. 541, 544)
As for alleged emotional issues, plaintiff testified that she had been receiving treatments at
Centerstone for “[t]wo years,” that she had been diagnosed with “[s]ome kind of paranoia” that
caused her to see things every day, but the voices never told her to do anything, and to hear voices
“every now and then.” (Doc. 10, pp. 541, 544) When she went to Centerstone, plaintiff saw a
therapist and a nurse. (Doc. 10, pp. 541, 544) Plaintiff identified the therapist as “Angie,” but did
not know her last name. (Doc. 10, pp. 541-42) Plaintiff testified that she had been seeing Angie

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about once a week for the last two years. (Doc. 10, p. 543)
Plaintiff testified further that she suffered from depression that began in 2002 when her son
died, and that her depression made it “hard for [her] to . . . get along with people.” (Doc. 10, p. 542)
She repeated that she was paranoid, noting that she could not “stand to be closed up.” (Doc. 10, p.
542) Plaintiff also testified that she had panic attacks – fewer when her medication (Cymbalta) was
“really working” – that caused her to have breathing difficulties and to become paranoid, the solution
for which was to calm herself by being alone. (Doc. 10, p. 542) Finally, plaintiff testified that she
had problems concentrating, that when she read something she would “have to go back and read it
again,’ and when she watched television, she did not understand what was being said. (Doc. 10, p.
543)
Plaintiff testified that she could lift “about 10 pounds” on a one-time basis, 2 to 3 pounds on
a frequent basis, that she could stand for 1 to 2 hours at a time, and that she could stand “two to three
hours” in an 8-hour day. (Doc. 10, p. 545) When asked how long she could sit, plaintiff testified
that she could only sit about 15 minutes because sitting “cut[] off [the] circulation” to her legs.
(Doc. 10, p. 545) When asked how long she could sit in an 8-hour day, plaintiff testified that she
could sit a maximum (total) of 15 minutes all day, and that she had to “sit down, get up, sit down,
get up, that’s . . . the only way I can do it.” (Doc. 10, p. 545) Plaintiff testified further that, when
her knees hurt, she had to “sit down or lay down.” (Doc. 10, p. 546) Plaintiff testified that she could
walk “about . . . half a football field.” (Doc. P. 546)
On examination by the ALJ, plaintiff testified that her daughter had been caring for her
financial needs since she quit her job, that apart from food stamps she had no income of her own,
and that she had not received unemployment benefits or a pension when she quit her job as a cook.
(Doc. 10, p. 546) When the ALJ asked if she had applied for a job since 2007, plaintiff testified that

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she had gone to work at Vanderbilt “for about . . . two days because [she] . . . couldn’t handle the
work.” (Doc. 10, p. 546)
The ALJ then asked plaintiff to clarify her earlier testimony that she had been treated at
Centerstone for two years, noting that he had not received the records until the prior Friday and that
he had not had a chance to “look carefully at them.”3 (Doc. 10, p. 547) When the ALJ pointed out
that the record “indicate[d] that they first saw you in July 2009,” and that was not “quite two years,”
plaintiff replied “I thought it was two years,” adding that she was “still going to . . . [Angie].” (Doc.
10, p. 547) In response to plaintiff’s testimony that she had seen Angie about once a week for the
last two years, the ALJ noted that the records showed that plaintiff had been “absent from treatment”
for six months in the first part of 2010. (Doc. 10, pp. 547-48) When asked to explain, plaintiff
replied that the pain in her knees kept from going for treatment. (Doc. 10, p. 548) When the ALJ
asked plaintiff if she was correcting her earlier testimony that she saw her therapist three or four
times a month, i.e., once a week, she replied “I think so, yes, sir.” (Doc. 10, pp. 548-49) Plaintiff
then amended her earlier testimony to reflect that she saw Angie about “two or three times a month
. . . .” (Doc. 10, p. 549)
The ALJ turned his questioning to the VE with the following hypothetical:

If I were to consider a hypothetical worker who was 48 years old, had
a 12th grade education, the same past relevant work as Ms. Mitchell,
who was capable of sedentary work, except that they were not able to
carry out complex or detailed instructions, not able to maintain
attention or concentration for more than two hours without having a
short break and not able to have more than occasional interaction with
others, would a worker with those characteristics and limitations be
able to perform the claimant's past work?

3

The hearing was held the following Tuesday.

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(Doc. 10, p. 550) The VE answered, “[S]he would not.” (Doc. 10, p. 550) When the ALJ asked if
there were other work the hypothetical worker could do, the VE answered that there were several
jobs at the sedentary level, i.e., production clerk, table worker, and machine tender, all of which were
available in substantial numbers at the local level. (Doc. 10, p. 550-51)
When asked what effect having to stand “briefly every two hours” would have, the VE
testified, “There would be no impact . . . .” (Doc. 10, p. 551) When asked what effect having to
stand “briefly once every hour” would have, the VE testified, “I don’t believe it would impact on
these jobs . . . .” (Doc. 10, p. 551) When asked what effect of the hypothetical worker “could not
respond appropriately to even a minimum level with supervisors and co-workers” would have, the
VE testified that it would be a “seriously unfavorable factor” that would “interfere with the
individual to function in the workplace. ” (Doc. 10, p. 551) The VE further testified that, if it were
a “persistent, chronic condition . . . not being managed, or moderated in any way . . . it would rule
out these jobs.” (Doc. 10, p. 551) Finally, the ALJ asked the VE what the effect would be if “the
hypothetical worker could not, on a sustained basis, understand, remember and carry out even simple
instructions,” to which the VE replied, “it would result in termination.” (Doc. 10, p. 551)
Plaintiff’s attorney then posed the following hypothetical to the VE:
Dr. Anchor, I want you to assume the same individual that was
described by the judge; the same work history as cook, medium and
skilled; 12th grade education, and assume this individual's ability to
lift would be no more than 10 pounds maximum on one occasion; on
a regular basis, she'd be able to lift two to three pounds. Her ability
to stand would be no more than 30 minutes, no more than one hour
at a time, two to three hours maximum during the workday. Sitting
would be approximately 15 minutes at one time, about two to three
hours in a workday, and her ability to walk would be approximately
50 yards. Would that eliminate the three positions that you had
named?
(Doc. 10, p. 552) The VE answered, “I believe it would, yes,” to the hypothetical above. When
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asked what the effect would be if the hypothetical worker could stand and sit a maximum of 6 hours
during a normal 8-hour workday, the VA answered that would eliminate all full-time jobs.
III. ANALYSIS
A. Administrative Proceedings Below
Under the Act, a claimant is entitled to disability benefits if she can show her “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§
404.1505, 416.905. Corresponding regulations outline the five-step sequential process described
below to determine whether an individual is “disabled” within the meaning of the Act.
First, the claimant must demonstrate that she has not engaged in
substantial gainful activity during the period of disability.
Second, the claimant must show that she suffers from a severe
medically determinable physical or mental impairment.
Third, if the claimant shows that her impairment meets or medically
equals one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P.,
App. 1, then she is deemed disabled.
Fourth, the ALJ determines whether, based on the claimant’s RFC,
the claimant can perform her past relevant work, in which case the
claimant is not disabled.
Fifth, the ALJ determines whether, based on the claimant’s RFC, as
well as her age, education, and work experience, the claimant can
make an adjustment to other work, in which case the claimant is not
disabled.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Wilson v. Commissioner of Social Sec., 378 F.3d
541, 548 (6th Cir. 2004)(internal citations omitted); Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 539
(6th Cir. 2007). The claimant bears the burden of proof at steps one through four. Warner v. Comm’r

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of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The burden then shifts to the Commissioner at step
five “to identify a significant number of jobs in the economy that accommodate the claimant’s
residual functional capacity (determined at step four) and vocational profile.” Jones v. Comm’r Soc.
Sec., 336 F.3d 469, 474 (6th Cir. 2003).
The SSA’s burden at the fifth step may be met by relying on the medical-vocational
guidelines, known in the practice as “the grids,” but only if the claimant is not significantly limited
by nonexertional impairment, and then only when the claimant’s characteristics identically match
the characteristics in the applicable grid rule. See Wright v. Massanari, 321 F.3d 611, 615-16 (6th
Cir. 2003). In cases where the grids do not direct a conclusion as to the claimant’s capacity, the SSA
must rebut the claimant’s prima facie case by coming forward with proof of the claimant’s individual
vocational qualifications to perform specific jobs, which is typically obtained through the testimony
of a VE. See Wright, 321 F.3d at 616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, *4 (S.S.A.)).
In determining the RFC for purpose of the analysis at steps four and five, the SSA is required to
consider the combined effect of all the claimant’s impairments. 42 U.S.C. §§ 423(d)(2)(B), (5)(B);
see Foster v. Bowen, 853 F.2d 483, 490 (6th Cir. 1988).
A review of the record shows that the ALJ complied with the required five-step process. Nor
does plaintiff allege that he did not.
B. Standard of Review
The district court’s review of the Commissioner’s final decision is limited to determining
whether the findings of fact are supported by substantial evidence in the record, and whether the
correct legal standards were applied. 42 U.S.C. § 405(g); Elam ex rel. Golay v. Comm’r of Soc. Sec.,
348 F.3d 124, 125 (6th Cir. 2003); Key v. Callahan 109 F.3d 270, 273 (6th Cir. 1997). “Substantial
evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such

14

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)(quoting Cutlip v. Sec’y of Health & Human
Servs., 10 F.3d 284, 286 (6th Cir. 1994)). The Commissioner’s decision must stand if substantial
evidence supports the conclusion reached, even if the evidence also could support a different
conclusion. His v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). In other words, if the
ALJ’s findings are supported by substantial evidence based on the record as a whole, then those
findings are conclusive. 42 U.S.C. §§ 405(g), 1383(c); Key, 109 F.3d at 273.
C. Claims of Error
1. The ALJ Erred by Significantly Misrepresenting the Evidence
and Not Giving Proper Weight to the Opinion of the
Plaintiff’s Treating Mental Health Provider
Plaintiff argues first that the ALJ did not provide “the required ‘good reasons’ for discounting
the treating source opinion” of Ms. Amonett in violation of SSR 06-3p. (Doc. 12, pp. 7-11) More
particularly, plaintiff argues that the ALJ discounted Ms. Amonett’s “opinion merely ‘because of her
limited qualifications, but more importantly because she ha[d] a very limited sporadic treatment
relationship with claimant,’” and “he failed to mention or apply SSR 06-3p.” (Doc. 12, pp. 7, 10)
As to the nature and duration of the relationship, plaintiff argues that “the ALJ erroneously noted
that Ms. Amonett ‘has a very limited sporadic treatment relationship with claimant,’” having seen
plaintiff “‘just twice (January 29, 2010 and July 16, 2010) before completing the assessment . . . on
October 6, 2010.” (Doc. 12, p. 10) Plaintiff argues that plaintiff had seen Ms. Amonett at least ten
times prior to completing the assessment. (Doc. 12, p. 10)
Acceptable medical sources who/that can provide evidence to establish an impairment under
the facts of this case generally are “licensed physicians (medical or osteopathic doctors)” and
“[l]icensed or certified psychologist.” 20 C.F.R. §§ 404.1513(a)(2) and 416.913(a)(2). However,
15

other sources who/that may provide evidence under the facts of this case to show the severity of an
impairment and how it affects the ability to work would include plaintiff’s therapist, Ms. Amonett.
20 C.F.R. §§ 404.1513(d)(1) and 416.913(d)(1).
The factors to be considered in evaluating evidence provided by plaintiff’s therapist include:
1) the examining relationship; 2) the treatment relationship; 3) the length of the relationship; 4) the
nature and extent of the treatment relationship; 5) the supportabilty of the opinion; 6) the consistency
of the opinion with the record as a whole; 7) specialization; 8) other factors. Gayheart v.
Commissioner of Social Security, 710 F.3d 365, (6th Cir. 2013)(citing 20 C.F.R. § 404.1527 & SSR
06-03p). Harmless error may be found, however, where the Commissioner has met the goal of §
404.1527(d) even though he has not complied with the terms of the regulation. See e.g., Cole v.
Astrue, 661 F.3d 931, 940 (6th Cir. 2011).
The following excerpts from the ALJ’s written decision are relevant to this issue:
The undersigned has . . . considered opinion evidence in accordance
with the requirements of 20 C.F.R. § 404.1527 and 416.927 and SSRs
96-2p, 96-5p, 96-6p and 06-3p. (Doc. 10, p. 18)
There is no evidence that claimant received mental health treatment
until July 6, 2009, when she had her initial psychiatric evaluation at
Centerstone. She reported being anxious since her January 2009 knee
replacement and upset because her physician would no longer
prescribe narcotic medication for her pain. She was diagnosed with
a depressive disorder and assigned a Global Assessment of
Functioning (GAF) score of 54. Claimant was prescribed Remeron
and asked to return in four weeks. Claimant attended several group
therapy sessions, but did not return to her medical provider until
September of that same year, 2009. She reported that she had taken
Remeron for a month without benefit. Claimant did not return to her
medical provider until January 29, 2010, when she reported that she
had been off her medications for many months and returned due to
worsening depression and nerves. Claimant was again absent from
treatment until she returned six months later on July 16, 2010. She
reported that she was sleeping only four to five hours a night, but was
not sleepy during the day. She was again rated at 54 on the GAF
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scale. Claimant next and most recently saw her medical provider and
her therapist on October 6, 2010. She reported a recent anxiety
attack, isolation, sleep disturbance, and audio hallucinations. She
was frequently caring for a newborn grandson. She asked her
therapist for help with a disability form. The completed form
indicates that claimant has had marked functional limitations. The
therapist also indicated on CRG forms that claimant has had marked
functional limitations. However, she was again rated at 54 on the
GAF scale. The Diagnostic and Statistical Manual, Fourth Edition,
Text Revision (DSM-IV-TR) (2000, p. 34) explains that GAF ratings
at 50 or below are indicative of serious symptoms of mental
impairment, and that scores of 51 and above would be indicative of
only moderate symptoms and difficulties. . . . (Doc. 10, pp. 18-19)
As noted above, claimant's therapist has indicated that she has marked
and extreme mental limitations. In contrast, claimant's mental health
medical provider has consistently rated her at 54 on the GAF scale,
suggesting only moderate mental limitations. The consulting
psychologist, Robert Doran, found only mild to moderate mental
limitations as did two state mental health consultants. Mr. Doran also
opined that claimant did not describe symptoms sufficient for a
diagnosis of depression. The claimant's therapist identifies herself as
having a MA in psychological counseling, but no license. I discount
her opinion because of her limited qualifications, but more
importantly because she has a very limited sporadic treatment
relationship with claimant. She had seen claimant just twice (January
29, 2010 and July 16, 2010) before completing the assessment from
on October 6, 2010. I give greatest weight to the consistent GAF
ratings and find that claimant has the moderate mental limitations
indicated above. (Doc. 10, pp. 20-21)
A review of the ALJ’s decision reveals that he correctly identified the standard of review for
medical evidence before him and credibility determinations as to that evidence. That review reveals
further that the ALJ considered the factors set forth therein. However, it is apparent from the record
that the ALJ did, in fact, err with respect to the number of times Ms. Amonett provided therapy to
plaintiff. The ALJ wrote that Amonett saw plaintiff only twice, whereas, as noted on pp. 6-7 above,
Ms. Amonett saw plaintiff at least nine times during the period in question. The question is whether
the ALJ’s decision to rely on GAF scores rather than Ms. Amonett’s medical source statement is
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harmless under Jones, or warrants remand for reconsideration in light of this error.
As discussed above at p. 8, Ms. Amonett’s medical source statement characterized plaintiff
as having marked-to-extreme mental/psychological limitations. The record shows, however, that
of the nine times that Ms. Amonett saw plaintiff, enumerated above at pp. 6-7, Ms. Amonett only
once conducted a mental status exam, the results of which were wholly unremarkable. On the other
eight occasions, Ms. Amonett did not conduct mental status examination, but based her clinical
observations solely on plaintiff’s participation group or one-on-one therapy sessions. In other words,
there is nothing in the record pertaining to Ms. Amonett’s interaction with plaintiff that supports the
findings in Ms. Amonett’s medical source statement that plaintiff had marked to extreme
mental/psychological limitations.
On the other hand, as discussed above at pp. 6-8, apart from a preliminary GAF score of 48
assigned at intake, Centerstone records consistently show that plaintiff had a current GAF score of
54 throughout the period of her treatment at Centerstone. A GAF score of 51 to 60 in DSM-IV-TR
reads as follows: “Moderate symptoms . . . OR moderate difficulty in social, occupational, or school
functioning . . . .”“ DSM-IV-TR, p. 34 (bold omitted).4 Moderate symptoms/limitations are not
disabling under the Act.
The ALJ’s decision to give controlling weight to plaintiff’s GAF score is amply supported
by the record before the Court. As noted above at p. 3, Mr. Doran, who characterized plaintiff as “an
unreliable historian . . . vague and evasive,” characterized her mental/psychological limitations in
2008 as mild to moderate. As noted above at pp. 3-4, Dr. Meneese characterized plaintiff’s
mental/psychological limitations later that same year as moderate at worst, and that plaintiff’s claims

4

DSM-IV was revised on May 27, 2013. The GAF score descriptions in DSM-5 are identical to those in DSM-

IV-TR.

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were not fully credible. As discussed above at. pp. 4-5, Ms. Garland characterized plaintiff’s
mental/psychological limitations in 2009 as mild to moderate. Later in 2009, noting that plaintiff’s
subjective allegations were only partially credible because they were inconsistent with the objective
findings in the record, Dr. Wright characterized plaintiff’s mental/psychological limitations as mild
to moderate.
Substantial evidence exists in the record to support the conclusion that, although the ALJ
erred in his assessment of the length of the relationship between plaintiff and Ms. Amonett, that error
was harmless. Accordingly, this claim is without merit.
2. The ALJ Did Not Properly Evaluate and Assess
Plaintiff’s Statements as Required by
Social Security Ruling 96-7p
Plaintiff argues that, “in explaining his credibility finding, the ALJ failed to make clear the
weight accorded to the Plaintiff’s specific allegations and testimony.” (Doc. 12, p. 12) Plaintiff also
argues that the ALJ “significantly misrepresented the evidence of record as it relates to Plaintiff’s
development of worsening pain and symptoms in her right knee after she underwent total left knee
replacement in January 2009.” (Doc. 12, p. 13) Plaintiff argues further that the ALJ erred in
referring to a January 2008 examination in which Dr. Doran indicated that plaintiff walked, stood,
and sat without apparent difficulty. (Doc. 12, p. 14) Finally, plaintiff argues that the ALJ erred in
his “conclusory” statement that plaintiff’s “demeanor contributed to [his] conclusion that she did not
recognize the seriousness of her testimony and did not take care to avoid exaggeration.” (Doc. 12,
p. 14)
“[The] ALJ is not required to accept a claimant’s subjective complaints and may properly
consider the credibility of a claimant when making a determination of disability.” Jones, 336 F.3d
at 475. Moreover, the ALJ’s credibility determination is accorded “great weight and deference . .
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. since the ALJ has the opportunity . . . of observing a witness’s demeanor while testifying.” Jones,
336 F.3d at 475. Still, an ALJ’s decision to discount a claimant’s credibility “must contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and any subsequent reviews the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.” SSR 96-7p, 1996
WL 374186 (July 2, 1996).
The ALJ’s analysis pertaining to plaintiff’s credibility is quoted below in its entirety. The
references in brackets below refer to those parts of the record that support his analysis.
I give substantial weight to claimant's testimony in finding that she is
limited to less than a full range of sedentary work, but I further find
that claimant exaggerated the extent of her functional limitations.
Claimant's testimony regarding the frequen[c]y of her treatment visits
to Centerstone was highly inconsistent with the documented treatment
history. [Doc. 10, pp. 547-49; Doc. 12, p. 10 n. 2][5] Although
claimant has complained of pain to her medical providers, she has
never indicated an inability to sit for more than 15 minutes or to lift
more than three pounds.[6] Claimant's demeanor contributed to my
conclusion that she did not recognize the seriousness of her testimony
and did not take care to avoid exaggeration. [Doc. 10, pp. 547-49]
Claimant gave conflicting reports to the various professionals who
evaluated her. She told Robert Doran that she did not go to any
worship services. She told Ms. Garland that she tried to go every
week. [Doc. 10, pp. 173, 233] She also told both psychological
evaluators that she had no friends, but she reported in her application
that she talks on the phone daily and likes to go fishing with her
neighbor. [Doc. 10, pp. 173, 233] She told Ms. Garland that she

5

As noted above at pp. 9-11, plaintiff testified at the hearing that she had been seeing Ms. Amonett “three,
four times” a month, or an average of once a week. As noted above at p. 11, plaintiff revised the frequency of her visits
to Center Stone downward to “two to three times a month.” In her supporting memorandum, plaintiff refers only to three
visits in July 2009, two visits in August 2009, two visits in September 2009, one visit in January 2010, one visit in July
2010, and two visits in October 2010. (Doc. 12, p. 10, n. 2)
6

A page-by-page review of the medical records before the court supports the ALJ’s determination that plaintiff
never indicated physical limitations of the magnitude that she claimed at the hearing.

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resigned from her job cooking at the school because of her knee
problems, but later in the interview, said she had been fired from a
job for missing days due to cocaine abuse. [Doc. 10, pp. 231-32][7]
She told Mr. Doran that her symptoms of anxiety began when she had
knee replacement surgery in 2009. However, she testified that her
depression and anxiety became a problem when he son died in 2002.
[Doc. 10, pp. 173, 542] She testified to receiving treatment at
Centerstone for the past two years, but the record shows treatment
starting in July of 2009.[8] [Doc. 10, pp. 401-02, 541-42, 547] She
told the psychological interviewer that she had never before received
mental health treatment, but then changed her report to include
treatment at Horizon, at the time of her son’s death. [Doc. 10, pp.
172-73] Claimant told Mr. Doran that she heard voices telling her to
do things such as prostitute herself. She testified at her hearing that
she heard voices, but that they never told her to do things. [Doc. 10,
pp. 174, 544] The inconsistent details do not, in and of themselves,
disqualify claimant for disability benefits, but they do challenge the
accuracy of her self-representation and confirm the suspicions of the
previously referenced evaluator who described claimant as a poor
historian, evasive, vague and defensive . . . . [Doc. 10, pp. 172-74]
(Doc. 10, p. 20)
As shown above, the ALJ’s credibility determination complied with SSR 96-7p, and that
determination is fully supported by the record. Accordingly, this claim is without merit.
IV. RECOMMENDATION
For the reasons explained above, the undersigned RECOMMENDS that the plaintiff’s
motion for judgment on the record (DE 12) be DENIED, and the Commissioner’s decision
AFFIRMED.
The parties have fourteen (14) days of being served with a copy of this R&R to serve and file
written objections to the findings and recommendation proposed herein. A party shall respond to

7

Plaintiff told Mr. Dorland, and also testified at the hearing, that she quit her job as a cook because of her
knees. (Doc. 10, pp. 173, 542)
8

The record shows that the actual time between plaintiff’s first visit to Centerstone on July 6, 2009 and the
hearing on December 14, 2010 was less than eighteen months.

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the objecting party’s objections to this R&R within fourteen (14) days after being served with a copy
thereof. Failure to file specific objections within fourteen (14) days of receipt of this R&R may
constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, reh’g denied, 474 U.S. 111
(1986); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
ENTERED this 15th day of January, 2014.

/s/Joe B. Brown
Joe B. Brown
United States Magistrate Judge

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